Regulating the Commander in Chief:
Some Theories
By Saikrishna Prakash
May 2006
The American Constitution Society takes no position on particular legal or policy initiatives. All expressions of
opinion are those of the author or authors. ACS encourages its members to express their views and make their
voices heard in order to further a rigorous discussion of important issues.
Regulating the Commander in Chief:
Some Theories
SAIKRISHNA PRAKASH
*
Recent events have caused scholars to consider a long ignored issue: the relation
between the commander in chief (CINC)
1
and Congress’s powers to regulate the armed
forces and captures.
2
The famous Bybee memorandum brought this issue to the fore
when it asserted that Congress could not interfere with “the President’s direction of
such core war matters such as the detention and interrogation of enemy combatants.”
3
The memo’s critics scoffed at this claim, insisting that Congress may regulate the
detention of enemy soldiers. With their articles in this issue, Dean Harold Koh, Neil
Kinkopf, and others have added their voices to the clamor against the Bybee memo.
Read in isolation, the Constitution’s text does not detail the scope of presidential
and congressional powers over the conduct of a war. Notwithstanding its relative
emptiness, both sides of this issue seem content to make arguments that rely almost
exclusively on the text. As a result, both sides have chosen to make textual claims that
largely beg the question. In this war of words, the opposing parties are firing blanks.
To advance a properly grounded answer, one must come to grips with English and
American history relating to commander in chief authority and the powers to regulate
the armed forces and captures. In the late eighteenth century, what did it mean to be a
commander in chief? What did it mean to regulate the armed forces and captures on
land and water? (E.g., does “captures” refer to armaments, soldiers, land, or some
combination?) Not